Posts Tagged ‘right of re-entry’

When does a landlord have right to serve a CPO s. 58 notice?

July 14, 2020

In Toms v Ruberry ([2019] EWCA Civ 128) the forfeiture clause in a lease required the landlord to serve notice of default on the tenant. The notice of default was to identify the breaches in question and to give the tenant 14 days to remedy (if the breach was capable of remedy). If the breaches were not remedied by the end of the 14 day period, the landlord could forfeit the lease.

The tenant broke a number of lease covenants. On 25 February 2016, the landlord served on the tenant both a notice of default and a notice under the English equivalent of section 58 of the Conveyancing and Property Ordinance (Law of Property Act, s. 146).

The question was whether the section 146 notice could validly be served before the expiry of the 14 day period specified in the notice of default.

The landlord argued that the section 146 notice was valid. To require the 14 day notice period to expire without the breaches being remedied before the section 146 notice could be served would be to prolong the process unnecessarily; the tenant would have two opportunities to remedy the breaches.

The Court of Appeal agreed with the tenant that the right to forfeit only arose if the 14 day notice period expired and the breaches were not remedied.

Michael Lower